Cheria vs Kumaran and Others

S. Padmanabhan, J.—Plaintiff is the appellant. His suit for declaration of title and cancellation of an order in execution was dismissed by the trial court and the decision was confirmed in appeal. Plaint A schedule property is 40 cents forming part of B schedule 2 acres 6 cents which belonged to the Hindu Joint Family consisting of the second respondent and his four sons. In execution of the money decree in O.S. 1037 of 1968 obtained against the second respondent alone by one Thomas on a promoter, B schedule property was attached on 27-1-1971 as if it is his separate property. It was proclaimed and sold on 25-1-1973 by the decree holder for Rs. 1,021,82. Sale was confirmed on 28-2-1975 and Ext. B1 sale certificate was issued on 6-4-1973. First respondent got assignment of Ext. B1 right on 8-5-1973 for Rs. 1,100/-.

The four sons of the second respondent filed O.S. 61 of 1969 for partition in which second respondent claimed the property to be his own. Rejecting that contention, the suit was decreed on 15-11-19-72 evidenced by Exts. A1 and A2. The attachment of the property as the separate property of the second respondent was after the institution of the partition suit by the sons claiming it to be joint family property and after the second respondent filed: Ext. B3 written statement on 30-1-1970 claiming separate title. Proclamation and sale were after the partition decree as if it is the separate property of the second respondent alone.

After the court sale and its confirmation and issuance of sale certificate the second respondent along with one of his sons (additional 6th respondent Sreedharan who is one of the decree-holders in the partition decree) sold A schedule 40 cents to the plaintiff (appellant) on 17-4-1973 under Ext. A 9 and put him in possession. It was pursuant to Exts. A4 agreement dated 11-4-1973 and for discharge of a family debt.

When delivery was attempted by the first respondent on the bests of the court sale, appellant obstructed. First respondent filed E.A. 427 of 1973 for removal of obstruction. That was allowed and it is the order sought to be set aside. These facts are not in dispute. The order sought to be set aside is Ext A 10. The suit was dismissed and the decision was confirmed in appeal.

The CPC as it stood before the amendment of 1976 was in force at the time of the impugned order and when the suit was filed.

The impugned order itself found that it is the common case that the appellant is in possession of 40 cents. It was also found on the merits that his possession is not on behalf of the judgment-debtor, but on his own account as he discharged the debts of the family as seen from the documents. Order 21 Rule 98 of the CPC as it stood before the amendment contemplates delivery of possession to the decree holder or auction purchaser, on his application, after removal of resistance or obstruction only in cases where the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf. Rule 99 as it stood then provided that if the court is satisfied that the resistance or obstruction was occasioned by any person other than the judgment-debtor claiming in good faith to be in possession of the property on his own account or on account of some other person, other than the judgment-debtor, the court shall make an order dismissing the application filed under Rule 97 by the decree-holder or auction purchaser for delivery after removal of obstruction. After having found that the obstructor (appellant/plaintiff) was in possession in good faith on his own account the application under Order 21 Rule 97 ought to have been rejected leaving other questions to be decided in a separate suit, if any. In such a situation the application could only be dismissed and the remedy of the auction purchaser was only by way of a regular suit as held in Sughar Sao v. Ganpat Das and another (A.I.R 1933 Patna 604). In order to overcome that situation, the appellate judge relied on Order 21 Rule 102 importing the rule of lis pendens. But the prohibition in, that rule regarding the applicability of Rule 99 and 101 in the matter of resistance or obstruction will come into play only if it is in execution of a decree for the possession of immovable property by a pendente lite transferee of the judgment-debtor. Here the decree is not for possession of immovable property and it is only a money decree. This fact was lost sight of by the courts below. The resistance or obstruction ought to have been allowed and The parties directed to a separate suit in such a situation without considering the other questions.

Rut both the courts below proceeded on the assumption that what was sold in execution of the decree was the entire right in the properly that belonged to the joint fairly of the father and sons even though the father alone was the defendant on the trial side and execution. Both the courts relied on the decision in S.M. Jakati and Another Vs. S.M. Borkar and Others, based on the pious obligation theory by which the sons in Hindu Mitbakshara Coparcenaiy families are having the liability to discharge the debts of the father, the Karthu which are not tainted with immorality or illegality. That obligation continues even after the death of the father and it will not come to an end as a result of partition of the joint family property unless a provision is made for payment of the just debts of the father. That decision said that even after the father''s power to discharge the debt by selling the shares of his sons in the property came into an end by partition, the right of the creditor to proceed against the property continues on account of the continuance of the pious obligation of the sons. That decision was misunderstood and misinterpreted by both the courts below resulting in the dismissal of the suit.

That decision itself said that the principle of Hindu Law that a decree obtained against a father is binding on the sons as they would be deemed to have been represented by the father in the suit even though they are not eo nomine parties and that is why they are not necessary parties. That decision did not contemplate or consider a case in which the father was not competent to represent the joint family or the sons or where the property was attached and sold as belonging to the father alone and the joint family or the sons had no right at all. That was a case in which after attachment and proper notice of sale, the whole of the estate including the sons'' share, which also was attached, was sold and the purchaser bought intending it to be the whole coparcenary estate. In such a situation there cannot be any quarrel with the proposition that the shares of the sons continue to be liable under the pious obligation theory and the obligation continues even after partition, regarding the earlier debt. But the effect of attachment on the severance of status by the filing of a suit for partition by one of the members of the coparcenary whose share was liable in execution of the decree was not raised or considered, as Para 22 of the judgment shows. So also in that case it was admitted that it was the entire property of the joint family that was sold and the father was competent to represent the sons. The contingency of S. 60 of the CPC operating to disable the father to represent the sons to have a binding sale of their shares and the further contingency of the father''s right alone being sold also did not arise in that case.

In this case the money suit against the father alone on a pronote was instituted and the attachment was obtained when the sons attained severance from the father by filing a suit for partition in 1969. The competence of the father to represent the estate of the sons to have a binding attachment and sale of their right without themselves being eo nomine pasties is not because their shares belong to him, but only because of the disposing power he is having as contemplated in section 60 C P.C. By severance of status that disposing power goes and he ceases to be competent to represent them. Even though the pious obligation of the sons continue even after partition, when once the severance is attained and the father becomes incapable of alienating the properties of the sons or represent them, the matter of attachment or sale of their shares binding on them will be a matter of procedure governed by the Code of Civil Procedure. An attachment or sale to which they are not parties may in such circumstances not bind them in spite of the pious obligation theory. Further even if the father was competent to represent the sons in the suit, the cause of action in the suit against the father was on the pronote and the cause of action against the sons is on their Hindu law liability. It is difficult to speak of the father as "representing" the sons in the suit on the pronote when it will not be open to him to raise defences which will undoubtedly be open to the sons if they had been impleaded in the suit. (See S. Thirumalamuthu Adaviar Vs. Subramania Adaviar by Court guardian S. Rajarama Aiyar, Advocate, High Court and Others, ).

These decisions were considered with approval by the Supreme Court in Pannalal and Another Vs. Mst. Naraini and Others, which was referred to in S.M. Jakati and Another Vs. S.M. Borkar and Others, relied on by the courts below. That decision said that the decree against the father alone obtained after partition in respect of a debt for which the sons have pious obligation cannot be executed against the properties allotted to the sons without them being on the array of parties. Pious obligation is one thing and enforceability is another which is a matter of procedure under the CPC when once the father is incapable of representing the sons. This aspect was neither considered nor dissented in S.M. Jakati and Another Vs. S.M. Borkar and Others, though the decision was referred to and approved.

In this case the property was attached and sold not as joint family property, but as the separate property of the father. That was after, the SOPS claimed it to be joint family property and sued for partition in 1969 and after the father filed written statement claiming it to be his separate property. Decree for partition accepting the property to be joint family asset was in 1972 and the sale as if it is the separate property of the father was thereafter. As held in Ahantha Pai Ganesh Pai v. Krishna Pai Kesava Pai (1955 KXT 339) the question is what was the right that was put up for sale, sold and purchased or in, other words what was the right and interest bargained for and obtained. What was intended and sold was the entire right belonged to the father. When the father had only a fractional light and when he was not competent to represent the joint family or his sons, his right alone could be deemed to have been sold (ILR XIV Cal.572). This position has been accepted in AIR 1-959 S.C. 282 Para 19 also. What was sold was only the right of the defendant.

Now the first respondent has backed out in second appeal and respondents 4 and 5 got themselves impleaded in second appeal. Other members of the joint family were also impleaded. The new contention is that first respondent was only a benamidar of the joint family when he took assignment from the auction-purchaser. First respondent accepts that contention and it is also more or less concluded by the decree in O.S. 261 of 1981 to which the appellant was also a party. A copy of the judgment in that case was produced. In that case there was no relief against the present appellant even though he was made a party. The only relief granted in that suit and binding on him is the benami nature of the assignment in favour of the first respondent. That will not in any way affect the right of the appellant.

As pointed out by Mulla and as held in Kedarnath Lal (dead) by his legal Kedar Nath Lal and Another Vs. Ganesh Ram and Others, , though Section 52 of the Transfer of Property Act is limited by Section 2 (d) and strictly speaking does not apply to court sales, now it is well settled that the principle of lis pendens is applicable to involuntary alienations like court sales also. The purchaser pendente lite is bound by the result of the litigation on the principle that since the result must bind the party, so must it bind the person deriving his right, title and interest from or through him. This question came up for first time in second appeal. Anyhow, the joint family or its members, cannot deny the rights under the partition decree and the rights alienated. Even though father''s right was sold away in court sale, the son (R6) who joined the sale in favour of the appellant by himself was entitled to more than the 40 cents sold. The appellant was holding the property under his own right and the obstruction ought not have been ordered to be removed. The auction-purchaser ought to have been directed to a separate suit.

The second appeal is allowed and judgments and decrees of the courts below are set aside. The suit is decreed granting the declaration prayed for and setting aside the order directing removal of obstruction. The right of the auction-purchaser or the persons claiming under him is only to file a separate suit for appropriate relief if any. Parties, will suffer costs in the circumstances.